1. Field of the Invention
The present invention relates to computers and computer based automation. More particularly, the invention relates to enterprise content management with a focus on corporate risk aversion management.
2. Background of the Related Art
Enterprise information assets, (i.e., corporate documents or records) have moved from a low priority business necessity to a high priority mandatory business process, which may be associated with a wide source of legal risk. That which was once merely good business practice of keeping complete and orderly records is now required by law for certain information as well as required as “insurance” to mitigate legal risk. Because of the risk in records management when not conducted according to “best practices,” motivation is now more than just to keep a file in case it may be needed in court.
Specific laws such as HIPAA, FACTA, Sarbanes-Oxley, etc., dictate specific requirements of records safeguarding. In addition, there are “best practice” standards recognized in the industry. Courts expect that files are managed in an orderly fashion, such that any file pertinent to litigation can be found within a reasonable period, and that it is the original, authentic and unaltered information. If a file is not available, then there needs to be a best-practices reason, such as that it was destroyed in a compliant manner.
For example, forensic legal discovery, as prescribed for in (FRCP) Rules 26(b) (2) (A-F) and 37, is a chief legal risk in records management. This is an order by the court, given in favor of one party, to “move in” on the other party's operations, on-site and off-site, to search through all records repositories, such as cabinets, shelving, desks, computers, disk drives, networks, etc. Such orders are given to one party by the courts when the other party has breached the record keeping best practices standard.
As a result, companies are trying to catch up. In doing so, companies have allowed their information assets to escape uncontrolled into the digital realm, via document imaging. Research shows that the two motivations for these pursuits were achieving compliance and reducing hard copy storage volume and costs. However, this may be a mistake on both counts in many circumstances for the following reasons.
A paper document can be stored physically and professionally for over 50 years, for the same cost as imaging, a by-product of paying per box, rather than using leased or mini-storage space that is always too empty or too full. Automated document storage or library systems have been developed using robotic mechanisms such that boxed documents can be stored and retrieved in an automated fashion. Examples of such automated storage systems are described in U.S. Pat. Nos. 5,513,156 and 5,914,819. If stored and indexed properly, off-site paper storage meets the requirements for best practices until retrieved. Using the paper approach, the problems associated with electronic documents, such as data migration, faulty storage media, the operational cost for verification, loss of control and theft, etc. are eliminated. Further, a disgruntled employee can walk out with un-determined amounts of proprietary information held on disks, lap-tops, etc. Such is more difficult with boxes of files.
Isolating computers, drives, disks, lap-tops and other repositories for a company's electronic storage is required for companies that have gone the paper-less road. However, their motivation of avoiding legal discovery is made worse because the discovery process now includes an adversarial search through electronic information.
Because of the scenarios described above, the legal tactic of discovery has shifted from seeking documents germane to a case to determining whether the opposition party is records-management compliant and exploiting the same with an order of forensic discovery, which impatient courts are willing to grant. Methods to compel discovery have reached an art form. One tactic is to seek more types of documents than needed, making it more difficult for the opposition party to comply. Specific renditions of documents are also demanded in other tactics, such as data in its “native state,” not text dumps, PDF's or other derivative forms. This includes e-mails not in text, but in their binary form with the legal “motivation” being to pick apart the electronic bits, including headers, footers and other information in potentially relevant contexts. Even more pertinent to all of this legal risk is that data in a search index can be used to re-construct a document even if the document itself has been irretrievably lost. Therefore, a document cannot be considered fully destroyed until the search index of the document is also destroyed.
The best-practices standard, consistent with the expectation by the courts to withhold legal discovery, is to be records retention compliant.